Case 4:11-cr LAB Document 277 Filed 08/11/11 Page 1 of 5

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1 Case 4:11-cr LAB Document 277 Filed 08/11/11 Page 1 of DENNIS K. BURKE United States Attorney District of Arizona WALLACE H. KLEINDIENST Assistant U.S. Attorney State Bar No West Congress Street, Suite 4800 Tucson, Arizona Telephone: (5320) wallace.kleindienst@usdoj.gov Attorney for Plaintiff United States of America, vs. Jared Loughner, Plaintiff, Defendant. DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) Case No. CR TUC-LAB MOTION FOR ORDER TO COMPEL DEFENSE COUNSELS COMPLIANCE WITH FEDERAL RULES OF CRIMINAL PROCEDURE RULE 17(c) COMES NOW the United States of America, by and through its undersigned counsel, and hereby respectfully moves this Honorable Court to enter an order compelling defense counsel to comply with Federal Rules of Criminal Procedure,Rule 17(c) when issuing a court subpoena duces tecum for the production of documents in this case and to grant other relief requested herein. 1. Rule 17(c) requires that the party seeking a subpoena duces tecum make an application to the Court for an order approving the issuance of the subpoena. Only in the case of a subpoena duces tecum may the Court direct that the evidence subpoenaed be produced for inspection before the trial or before it is to be offered in evidence. United

2 Case 4:11-cr LAB Document 277 Filed 08/11/11 Page 2 of th States Keen, 509 F. 2d 1273, 1275 (6 Cir. 1975). The proponent must show to the court that the requested records are relevant, admissible and responsive to a specific request. th United States Eden, 659 F.2d 1376, 1381 (9 Cir. 1981). Rule 17(c) is not intended to be a discovery tool or to allow a blind fishing expedition seeking unknown evidence. United th States MacKEY, 647 F.2d 898, 901 (9 Cir. 1981). Rule 17(c) allows the Court to order that the subpoenaed documents be delivered to the Court before trial or before they are to be offered in evidence and the court may permit the parties to inspect all or part of the document after they have arrived. 2. The defense has issued at least two (and possibly more) Rule 17(c) subpoenas duces tecum compelling production of records without obtaining the approval of this Court, without notifying the government that the subpoenas were issued, and without providing to the Court or the government copies of any documents received in response thereto. 3. The first subpoena was served on the Custodian of Records, Tierra Rica Apartments, 3201 Ina Road, Tucson, Arizona. (Attached hereto as Exhibit 1.) The subpoena was dated April11, 2011 and required production of the documents on May 25, It requested records pertaining to the rental or lease agreement with Bradley W. Bork. This th Court held a hearing on May 25 in Tucson. The defense did not advise the Court that it had subpoenaed records pursuant to this subpoena and they were to be produced in court that day. The government did not receive any of the subpoenaed records from the defense. The best information available to us is that the company sent the records to the defense around the first week of May, almost a month before the court hearing. The defense never provided the government with a copy of those records. 4. The defense subsequently served twenty-two (22) subpoenas duces tecum on the,. (Attached hereto as Exhibits 2). The subpoenas were dated July 28, 2011 and required production on September 21, The subpoenas collectively requested birth and death records of eleven 2

3 Case 4:11-cr LAB Document 277 Filed 08/11/11 Page 3 of individuals. (The government has been advised that these subpoenas have been recently withdrawn to be substituted by other ones forthcoming.) 5. Unless the defense made applications under seal for the issuance of these subpoenas and obtained the Court s approval, the defense has violated Rule 17(c). 6. Counsel for the Tierra Rica apartment complex disclosed the subpoena to the government. The government then advised defense counsel that they had violated Rule 17(c). The government proposed an agreement which would be presented to the Court for approval which would streamline the Rule 17(c) process in order to minimize the Court s time. Unbeknownst to the government, while the terms of the agreement were being negotiated, the defense issued the subpoenas to the Department of Public Health Division of Vital Records. (Again, we received copies of the subpoenas not from the defense, but from counsel for the.) The parties were thereafter ultimately unable to reach an agreement. 7. The government does not know how many additional Rule 17(c) subpoenas have been issued in violation of the Rule after the defendant was indicted. The government would ask this Court to make an appropriate inquiry. We would also that if any subpoenas have been issued and documents have been produced, that the government be given copies of the subpoenas and the records. 8. The District Court for the District of Arizona does not have a local rule which implements Rule 17(c). 9. The for the Southern District of California does, however, have a Local Rule which sets forth the steps to obtain a Rule 17(c) subpoena. That Rule requires the party to submit a motion to the magistrate judge assigned to the case (which would be Magistrate Judge Peter Lewis here), the proponent must establish by affidavit or declaration that the records sought are evidentiary, relevant and not otherwise procurable in advance of trial; the motion is served on the other party who has the right to object to the 3

4 Case 4:11-cr LAB Document 277 Filed 08/11/11 Page 4 of subpoena; the records are returnable to the magistrate judge; and the court will maintain the documents which the parties can inspect and copy. 10. This Rule seems both reasonable and efficient. The government suggests that the Court use that Rule as an example and require the parties to follow its procedures in this case. Defense counsel, who practice in San Diego, presumably know about this Local Rule so they should not be confused as to its requirements.. WHEREFORE, for the above and foregoing reasons the United States respectfully requests the Court to: 1. Order the defense to produce copies of all subpoenas that they have issued in this case and all records received pursuant to any such subpoena; 2 Provide the government with copies of the subpoenas and records; 3. Quash any subpoenas which have been issued by the defense but not yet complied with by the recipient of the subpoena; 4. Order that both parties follow the aforementioned Local Rule of the District Court for the Southern District of California in seeking a Rule 17(c) subpoena. th Respectfully submitted this 11 day of August, DENNIS K.BURKE United States Attorney District of Arizona s/wallace H. Kleindienst Wallace H. Kleindienst Assistant U.S. Attorney I hereby certify that a copy of this pleading was electronically delivered to all counsel of record.. 4

5 Case 4:11-cr LAB Document 277 Filed 08/11/11 Page 5 of Wallace H. Kleindienst Assistant U.S. Attorney

6 Case 4:11-cr LAB Document Filed 08/11/11 Page 1 of 1 THY No P. 003 DISTRICT OF UNITED STATES OF AMElUCA, I t I I CRllwOI87 TUC-LAB Tierra Rica Apartment -'--ATT:Cusfodian-ofRecords--' '-"-' 3201 Ina Road Tucson,AZ United States District COUl'l Tl)cson AZ DA TE AND TIME May I \:30 p.m. x YOU ARE ALSO COMMANDEb to bring with you the following document(s) or object(s): Please bring with you any and all records including but not limited to the rental or lease agreement WiLh Bradley W. Bark. U.S. MAGISTRATE JUDGE OR CLERK OF COURT (By) Deputy Clerk Aprilll.2011 A TIORNEY'S NAME, ADDRESS AND PHONE NUMBER: Reuben Camper Calm Federal Defenders of San Diego, Inc. 225 S.oadway, Suite 900 San Diego. CA (619) Fax:: (619)

7 Case 4:11-cr LAB Document Filed 08/11/11 Page 1 of 22 ""'A089 (Re 7/95) Subpoena in a Criminnl Case ;::;; ; Z2 DISTRICT OF..;:.ARl=Z;:;:.O;;:;.;N:..;.:A"""-- CRll 0187-TUC~LAB Springfleld; IL AND TIME September 21, 20 II J 0:00a.m. Please provide a certified copy birth and death certificate for Mrs. Virginia C. STRAN. Virginia C. STRAN DOB: 15 DOD: 04 ORltERK OF COURT July 8, 2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900

8 Case 4:11-cr LAB Document Filed 08/11/11 Page 2 of 22 ~A089 (Re 7/95) SubpoL'na in a Criminal Case ==- UNITED STATES DISTRlCT COURT DISTRICT OF..:.ARI~Z:;::;O~N~A:..!.- CRII-0187-TUC-LAB Department of Public Health Division of Vita! Records AND TIME September 21, :OOa.m. Please provide a certified copy birth certificate for Ms. Trudy TROEGER. Trudy TROEGER DOB: not available July 8,2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Reuben CampI:r Cahn Federal Defenders of San Diego, Inc. 225 Broadway, Suite 9QO "

9 Case 4:11-cr LAB Document Filed 08/11/11 Page 3 of 22 ~A089 (Re 7/95) Subpoena in a Criminal Case = =:;;: DISTRICT OF _AR=I::;;::Z..;;:;,O;...;N;:..:;A'--- CRll"0187-TUC-LAB AND TIME September 21, 2011 IO:OOa.m. Please provide a certified copy birth and death certificate for Mr. Robert STRAN. Robert STRAN DOB: not available DOD: not available July 8,2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of Sun Diego, Inc.

10 Case 4:11-cr LAB Document Filed 08/11/11 Page 4 of 22 'IO.A089 (Re 7/95) Subpoena in a Criminal Case ; DISTRlCT OF..;:.AR=IZ=~~O;:;;;.;N,""A UNITED STATES OF AMERlCA,. CRII-0187-TUC-LAB United States District COUlt AND TIME September 21, :00a,m, Please provide a certified copy birtjl and death certificate for Ms. Mary Johnson TOTMAN. Mary Johnson TOTMAN DOB: 1893 DOD: 69 July 8,2011 A TIORNEY'S NAME, ADDRESS AND PHONE NUMBER: Reuben Camper Calm Federal DefenderH of San Diego, Inc. 225 Broadway, Suite 900

11 Case 4:11-cr LAB Document Filed 08/11/11 Page 5 of 22 in a Criminal DISTRICT OF..!.ARI~:::.ZO::::.;N:..:,;A~ CRII-0187-TUC-LAB Springfield, IL you ARE COMMANDED to appear in the at the place, date, and time specified below, AND TIME September 21, 20 I I I O:OOa. m. Please provide a certified copy birth certificate for Ms. Linda Mona Tourville TOTMAN. Linda Mona Tourville TOTMAN DOB: 56 July 8, 2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of Sun Diego, Inc. 225 Broadway, Suite 900

12 Case 4:11-cr LAB Document Filed 08/11/11 Page 6 of 22 "Ii. A089 DISTRICT OF...:.AR1Z=~O:::.;;N:..:::A:..!.- ~ CRl1 0187~TUC-LAB Springfield, IL 62702~2732 AND TIME Septembcr21,201110:00a.m, Please provide a certified copy birth certificate for Ms. Lois May BLEIFUSS. Lois May BLEIFUSS no.b: 25 July 8,2011 A TIORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, inc,

13 Case 4:11-cr LAB Document Filed 08/11/11 Page 7 of 22 ":',~.A089 (Re 7/95) Subpoena in it Criminal Case UNITED STATES DISTRlCT COURT DISTRICT OF...:..AR=I~ZO~N:;..;,A!.Z- ~ CRIl OI87 TUC LAB Department of Public Health Division of Vita] Records Unitcd Statcs District Court for the District of Tucson Arizona AND TIME September 21, :OOa.m. Please provide a certified copy birtb certificate for Mr. Lyle Jay BLEIFUSS. Lyle Jay BLEIFUSS DOB: 19 (By) D<;:p July 8,201] ATI'ORNEY'S NAME, ADDRESS AND PI /ONE NUMBER: Rcub<;:n Camper Cahn F<;:deral Defenders of San Diego, Inc.

14 Case 4:11-cr LAB Document Filed 08/11/11 Page 8 of 22 ~A089 DISTRICT OF..!.ARl=Z:;;::.:O:::;.:N:..;.:A~ CRll~0187~TUC-LAB Department of Public Health Division of Vita] Records Splingfield, IL AND TIME September 21, 20] J 10:00a.m. Please provide a certified copy birth certificate for Mr. Laurence.Edward TOTMAN. Laurence Edward TOTMAN DOB: 25 July 8, 2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders orsan Diego, Inc.

15 Case 4:11-cr LAB Document Filed 08/11/11 Page 9 of 22 ~A089 (Re 7/95) Subpoena in a Criminal Case ; ;;; DISTRICT OF...;.,AR=IZ;;;;;.O=N;.;.:A""-- CRII-0187-TUC-LAB AND TIME September 21, 2011 IO:OOa.m. Please provide a certified copy birth and death certificate for Mr. Leslie BLEIFUSS. Leslie BLEIFUSS DOB: 1924 DOD: not available July 8,2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Inc.

16 Case 4:11-cr LAB Document Filed 08/11/11 Page 10 of 22 ~A089 DISTRICT OF..;;ARIZ=:;:.O::::.;N~A:...::..- CRl J-0187-TUC-LAB for the District of Tucson AriZona AND TIME September 21, 2011 IO;OOa.m. Please provide a certified copy death certificate for Mr. Laurence A. TOTMAN. Laurence A. TOTMAN DOD: 70 July 8, 2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Inc.

17 Case 4:11-cr LAB Document Filed 08/11/11 Page 11 of 22 ~A089 (Re 7/95) Subpoena in a Criminal Case UNITED STATES DISTRlCT COURT DISTlUCT OF..;.ARl=Z:;;;:.;O::;.;:N:...:.;Ao...::... UNITED STATES OF AMElUCA, CRll-0187-TUC-LAB AND TIME September 21,2011 I 0:00a.m. Please provide a certified cony birth certificate for Mr. Jeffl'ey TOTMAN. Jeffrey TOTMAN DOB: 52 July 8, 2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Inc.

18 Case 4:11-cr LAB Document Filed 08/11/11 Page 12 of 22 "t>.a089 DISTRICT OF...;:.A=R=I=ZO.:;;.;N;,..:.:;.;;;A CRII-OI87-TUC-LAB AND TIME September 21,2011 I 0:00a.m. Please provide a certified copy birth certificate for Ms. Judy Kay TROEGER WACKT. Judy Kay TROEGER WACKT DOB: 59 July 8, 2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, [nco

19 Case 4:11-cr LAB Document Filed 08/11/11 Page 13 of 22 ""A089 Case DISTRICT OF..;,AR~IZ~O:=.N:..;:;A~ ~ CRII-0187-TUC-LAB TO; remain in effect until you are granted leave to depart by the COUlt or by an officer acting on behalf of the court. AND TIME September 21, 2011 IO:OOa.m. x YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s); Please provide a certified copy birth and death certificate for Ms. Jessie ANDERSON. Jessie ANDERSON DOB: 1895 DOD: not available RKOFCOURT July8,2011 A TIORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Inc.

20 Case 4:11-cr LAB Document Filed 08/11/11 Page 14 of 22 <ll>.a089 (Re 7/95) Subpoena in a Criminal Case, ;~; ;;:; DISTRICT OF...:.AR=IZ~O:;:,,;N~A:..::.- CRII-0187-TUC~LAB Springfield, IL 62702~2732 remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the COUlt. AND TIME September 21, :00a.m. Please provide a certified copy birth certificate for Ms. Irene BLEIFUSS. Irene BLEIFUSS DOB: 1917 July 8, 2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Inc.

21 Case 4:11-cr LAB Document Filed 08/11/11 Page 15 of 22 '4.A089 (Re 7/95) Subpoena in a Criminal Case ; ;; DISTRICT OF..:,.ARl=Z;;;;.;O:::;.;:N,.:.:A...;... CRll 0187~TUC-LAB Springfield, 1L remain in effect until you are granted leave to depmt by the court or by an officer acting on behalf of the court. AND TIME September 21, 2011 IO:OOa.m. x YOU ARE ALSO COMMANDED to bring with you the following document(s) or obj.ect(s): Please provide a certified copy birth and death certificate for Ms. Helen Lucille BLEIFUSS. Helen Lucille BLEIFUSS DOB: 21 DOD:.99 July 8,2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER; Federal Defenders of Sun Diego, Inc.

22 Case 4:11-cr LAB Document Filed 08/11/11 Page 16 of 22 ""-A089 (Re 7/95) Subpoena in a Criminal Case DISTRICT OF..:.AR=rZ;;:..;O:;;;.:N~A~ CRI TUC-LAB State of Il1inois AND TIME September 21, 20 II 10:OOa,m. Please provide a certified copy birth certifit;ate for Mr.Gary STRAN. GarySTRAN DOB:.49 CLERK OF COURT! ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of Sun Diego, Inc. July 8, 2011 I I i f ~ f.'

23 Case 4:11-cr LAB Document Filed 08/11/11 Page 17 of 22 <!:>.A089 DISTRICT OF...;..A=RI;;;;.ZO.;:;..;N:...;.A,"",,-~ Case Number; CRII-0187-TUC-LAB AND TIME September 21, 20 I I I O:OOa. m. Please provide a certified copy birth and death certificate for Ms. Dorothy BLEIFUSS TROEGER. Dorothy BLEIFUSS TROEGER DOB:.27 DOD:.06 July 8,2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Inc.

24 (' Case 4:11-cr LAB Document Filed 08/11/11 Page 18 of 22 ~.A089 in a Criminal Case DISTRICT OF.,.:.ARIZ==-O:;:.:N:...:,;A:...:... CRll-0187-TUC-LAB or any subsequent place, date and time set by the comi, to testify in the above referenced case. This subpoena shall AND TIME September 21,20 II 10:00a.m. Please provide a certified copy birth and death certificate for Mr. Donald BLEIFUSS. Donald BLEIFUSS DOB: 32 DOD: 69 July 8,2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: F<.'<ieral Defenders of San Diego, Inc. 225 Broadway, Suite 900

25 Case 4:11-cr LAB Document Filed 08/11/11 Page 19 of 22 'Q,A089 DISTRICT OF...:.ARI=Z:::.O;;;;:.;N;;,.:.A=- CRI TUC-LAB AND TIME September 21, :00a.m. Please provide a certified copy birth and death certificate for Ms. Caroline BLEIFUSS. Caroline BLElFUSS DOB:.57 DOD: not available CLERK OF COURT July 8, 2011 ATroRNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders orsan Diego, Inc. 225 Broadway, Suite 900

26 Case 4:11-cr LAB Document Filed 08/11/11 Page 20 of 22 ~A089 DISTRICT OF.;;..ARI=Z=O=N;;...;.;;.;;A'-- CR1I-0187-TUC-LAB for the Di~trict oftl1cson Arizona AND TIME September 21, ;00a.m. Please provide a certified COllY birth certificate for Mr. Albert Anton BLEIFUSS. Albert Anton BLEIFUSS DOB: 18 July 8,2011 ATTORNEY'S NAME, ADDRESS AND PHQNE NUMBER: Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900

27 Case 4:11-cr LAB Document Filed 08/11/11 Page 21 of 22 ~A089 (Rev, 7/95) Subpoena in a Criminal Case : DISTRICT OF...:.AR~I::;:.ZO;::;.;N:..,:;A~ CRl1~0187-TUC LAB remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court, AND TIME September 21, :00a,m, Please provide a,certified copy death c~rtificate for Mr. Albert BLEIFUSS. Albert BLEIFUSS DOD: U,S. MAGISTRATE JUD0t:]R. ERK OF COURT <:"' ;::, (By) Deputy Clerk July 8, 2011 ATroRNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Jnc, 225 Broadway, Suite 900

28 Case 4:11-cr LAB Document Filed 08/11/11 Page 22 of 22 ~A089 DISTlUCT OF..,;;.AR=IZ;;::.;O;::;.;N:..;,:A:...::.- CRII-0187-TUC-LAB United States District COUlt AND TIME September 21,2011 I 0:00a.m. Please provide a certified copy birth certificate for Mr. Anton TOTMAN. Anton TOTMAN DOB: 62 July 8, 2011 ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER: Federal Defenders of San Diego, Inc. 22S Broadway, Suite 900